Complainant

Respondent

Anonymised Parties

General Operative

Construction Industry Supplier

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026263-001

13/02/2019

The complainant was employed as a general operative by the respondent commencing employment in June 1995. The complainant was originally employed on full-time basis but for the past few years his employment has been part-time. The complainant went on sick leave following an accident at work. During his recuperation the complainant suffered a further unrelated injury. The dispute is in relation to the decision of the respondent to terminate the employment of the complainant.

In February 2017 the complainant suffered an injury in a workplace accident and went on sick leave.

Whilst on sick leave the complainant suffered a further injury which meant that he would be absent from work for a further period of time.

The complainant’s supervisor was informed accordingly.

In January 2019 the complainant received his P45 form from the respondent.

The complainant’s sister contacted the respondent querying this development as there had been no contact from the respondent for some considerable time.

On 19 February 2019 the respondent wrote stating that the matter was closed.

The complainant was not dismissed but terminated his own employment due to lack of contact and certification as required by company policy and procedure.

In March 2018 the complainant had been deemed fit to return to work.

In May 2018 the complainant’s supervisor was verbally informed that the complainant had had an operation to deal with an injury unrelated to the workplace accident.   No letters or certificates were received in this regard.

In August 2018 the respondent wrote to the complainant advising that as communication had been received it was assumed that he was not returning to work and that a P45 form would issue.

In January 2019 as nothing had been heard from the complainant the respondent issued the P45 form. The complainant’s sister contacted the respondent expressing surprise at the receipt of the P45 form.

In February 2019 the respondent wrote to the complainant advising that if he wished to return to work it would be necessary for him to contact the respondent with specified details. As no response was received within two weeks the respondent wrote to advise that the matter was closed.

As the complainant was advised on 9 August 2018 that his employment was being terminated the complaint of unfair dismissal filed on 13 February 2019 is out of time.

Preliminary Issue:

The respondent states that a letter was sent to the complainant on 9 August 2018 to the effect that it was noted that he had been assessed in March as fit to return to work and that because of his continued absence and lack of notification it was deemed that he had chosen not to return. The letter went on to say that a P45 form would be prepared and that any outstanding pay would issue. Due to an oversight the P45 was not issued at that time. The mistake was discovered in January 2019 and the P45 issued with a termination date of 9 August 2018. The respondent stated that the termination date was the 9 August 2018 and that the complaint which was lodged by the complainant in February 2019 was outside of the period provided in legislation for submitting such a complaint.

The complainant submitted that the first indication that he received in relation to any termination of his employment was when he received the P45 form in the post in January 2019. The complainant stated that he had not received any letter such as the one the company said that they sent in August 2018. He was therefore unaware of a termination of employment until January 2019 and lodged his complaint with the WRC on 13 February 2019.

Section 8(2) of the Unfair Dismissals Act, 1977, states:

A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 0f the Act of 2015 to the Director General

(a)    within the period of 6 months beginning on the date of the relevant dismissal, or

(b)    within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

The respondent states that the letter sent on 9 August 2018 was notification of termination of employment. The complainant states that he never received this letter and was unaware of this decision. The respondent did not present evidence of delivery of this letter and confirmed that the letter was not registered. The intention was to forward a P45 form separately but the respondent accepts that due to an oversight this did not occur until January 2019. Having considered all the factors involved I am satisfied that reasonable cause existed in this particular case to prevent the lodging of the notice of complaint within the 6-month period and I therefore allow the extension of time provided for in Section 8(2)(b) above.

Complaint No.CA-00026263-001:

The background facts are not in dispute. The complainant had been employed by the respondent as a general operative since June 1995, originally in a full-time capacity but in latter years he worked a 3-day week. The complainant suffered an injury at work on 22 February 2017 which necessitated his absence on sick leave which continued for the rest of that year.   During this time there was interaction with an occupational health (OH) doctor nominated by the respondent who recommended physiotherapy. The respondent’s Finance and HR Director liaised with the complainant’s sister (an ex-member of staff) in this regard. In March 2018 the respondent arranged a further assessment of the complainant by a different OH specialist. The report from that specialist stated that the complainant was fit to return to full and unrestricted duties with immediate effect.   The complainant states that he did not get a copy of this report.

The HR Director in her evidence stated that some time later she met by chance with the complainant’s sister who told her that she was experiencing difficulties in getting the complainant to return to work and the Director suggested that the return could be done on a phased basis. In early-May there was another chance meeting between the complainant’s sister and his immediate work supervisor and the supervisor was informed of further surgery being carried out on the complainant’s hand in relation to a medical issue unrelated to the accident at work. The indication was that the complainant would be unfit for work for a further period of time. It is accepted that the complainant was not furnishing any medical certificates to the respondent at this time.

In August 2018, as noted above, the HR Director sent the letter about the termination of the complainant’s employment which the complainant denies receiving. There was no further communication between the parties until the complainant received his P45 form in the post towards the end of January 2019. The complainant’s sister then contacted the Director expressing surprise at the receipt of the form which had no covering letter. On 5 February 2019 the Director wrote to the complainant enclosing the letter sent in August 2018 and advising that as no medical certs had been received and following the informal conversation with his sister it was believed that the complainant was not interested in returning to work.   The final paragraph of the letter stated that if the complainant wished for the matter to be reconsidered then either he or his sister should put that request in writing together with an indication of when he would be in a position to return to work. This letter was copied by text to the complainant’s sister’s phone. There was no reply to this letter and on 19 February the Director wrote again to the complainant stating that as no response had been received to her previous letter the matter was closed. As noted, the complainant lodged his complaint with the WRC on 13 February.

In the letter of 9 August 2018 the Director stated:

 “following on from your occupational health assessment on March 9th when you were assessed as being fit to return to work, and offered a phased return to work, you are deemed to have chosen not to return to work by virtue of your absence and lack of notification otherwise.”

In the letter of 5 February 2019 the Director wrote:

“As I hadn’t received a response since that time or written communication / certificates following on from M’s assessment of your fitness to return to work, and following on from an informal conversation I had with (sister), I believed you not to be interested in a return to work and thus I issued the P45.”

It appears to me that there was a lack of follow-up to the OH report on the part of the respondent with the complainant submitting that he had not received a copy of same. It would be normal good practice to forward a copy of the report to the complainant and make arrangements for a formal meeting to discuss the contents of the report. The purpose of this meeting would be to agree a way forward for the return to work of the complainant. Indeed, it was accepted by the Director at the hearing that such a meeting should have been convened.

As regards certification, I accept the respondent’s point that the company’s sick leave policy specifies that certs should be submitted on a weekly basis but equally, if they are not submitted, there is an onus on an employer to notify the employee that failure to supply certification can lead to disciplinary action.   Furthermore, in the February 2019 letter the Director states that a second reason for deciding to issue the P45 was a belief that she reached following an informal discussion with the complainant’s sister. It has to be said that such conversations with third parties (albeit an accepted conduit for communication with the complainant) cannot be used as the basis for a decision on the termination of employment of an employee with over twenty years’ service. In addition, it is accepted that at this stage the respondent had been notified of the further medical condition affecting the complainant. Finally, even if the Director believed that the complainant did not intend to return to work, the proper course of action was to formally advise him that his continued absence could result in a decision being made on the termination of his employment and advise him to contact the respondent in this regard.

Dismissal is defined in the Act as:

The termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

It is clear that the termination of the complainant’s contract of employment was due to the actions of the respondent and that the complainant was accordingly dismissed.

Section 6(1) of the Act states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all of the circumstances, there were substantial grounds justifying the dismissal.

I find that the procedures adopted by the respondent in deciding to terminate the complainant’s contract of employment were flawed and consequently the dismissal of the complainant was an unfair dismissal.

I note that according to the evidence before me the complainant is still in receipt of Illness Benefit and is not at this time available for work. In these circumstances the complainant has not suffered a financial loss attributable to the dismissal. Section 7 of the Act deals with the redress provision applicable to unfair dismissal and, in particular, Section 7(1)(c)(ii) states:

If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

Complaint No. CA-00026263-001:

For the reasons outlined above I find this complaint to be well founded and that the complainant was unfairly dismissed. I order the respondent to pay to the complainant the sum of €930.00 as compensation in this regard.